Governing Paradoxes of Restorative Justice

George Pavlich

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781138156289
• eBook ISBN: 9781136641756
• Topic: Law
• Subtopic: Criminology
• Index: Law

Restorative justice is the policy of eschewing traditional punishments in favour of group counselling involving both victims and perpetrators. Until now there has been no critical analysis of governmental rationales that legitimize restorative practices over traditional approaches but Governing Practices of Restorative Justice fills this gap and addresses the mentalities of governance most prominent in restorative justice. The author provides comprehensible commentary on the central images of this discursive arena in a style accessible to participants and observers alike of restorative justice.

Chapter I

Tracing Auspices of
Restorative Justice

For centuries, justice has been figured through the symbol of a blindfolded Themis. She bears the scales of impartiality in one hand and a sword of power in the other, evoking this allegorical message: justice is possible when a neutral judge calculates a fair balance of accounts to arrive at decisions backed by the force of a sovereign power. The detached fairness of equally considered, yet enforced, judgments provides a basic rationale for the machinations of modern courtrooms and associated legal measures. Despite this rationale's dominance in criminal matters, the past few decades have witnessed calls for a return to justice located around different images and techniques, their message generally captured by Auerbach's (1983) allusion to Justice Without Law. Initiatives around the various mantles of informal justice, neighbourhood justice, alternative dispute resolution and community justice have contested law's implicit mandate to secure justice. Most recently, an amorphous grouping of initiatives under the rubric of restorative justice has come into its own, especially in youth justice arenas.

During that time, much figurative ink has flowed in attempts to describe and define restorative justice.¹ Even if its proponents do not always agree on the implications of the justice they pursue, most define its auspices in common ways. It is depicted as a different approach to crime from what is on offer in criminal justice domains. For them, restorative justice works from a distinctive moral compass, pointing to a justice that requires the active input of victims, offenders and affected community members to heal the harm of a specific criminal act. One of its leading proponents defines the terrain thus:

Restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and to put things as right as possible (Zehr, 2002: 37).

Elaborating further, Umbreit notes:

Restorative justice is a victim-centered response to crime that gives the individuals most directly affected by the criminal act -the victim, the offender, their families, and representatives from the community — the opportunity to be directly involved in responding to the harm caused by crime (Umbreit, 2001: xxxvii).

From this vantage point, restorative justice is contrasted with courtroom justice and the moral frameworks associated with adversarial retribution. Restorative justice visions explicitly reject principles of justice that derive from lex talionis, or the desire to punish guilty offenders on the basis of ‘an eye for an eye …’. The purpose of restorative justice is not to isolate the guilty so that the state can exact its ‘pound of flesh’. Instead, its version of justice is centred on specifically nuanced concepts of harm, obligation, need, restoration, healing, reconciliation, reintegration, participation and — when appropriate — forgiveness.

These values are then used to guide community-based, victim-centred approaches to crime, requiring offenders to make amends for their criminal behaviours (eg, Zehr, 2002; Strang, 2001). Restorative justice offers a practical, problem-solving approach that deals with ‘real’ people rather than abstract legal rules — an expansive range of processes, programs and practices designed to empower victims, offenders and communities to redress the material, psychological and relational harms generated by crime. Such forums promote active ‘dialogue and participatory decision-making’ while encouraging offenders to take responsibility for their actions (Zehr, 2002: 55). The most commonly deployed restorative justice practices include family group conferences, community mediation and panels, victim-offender mediations, sentencing circles, reconciliation commissions, and various informal tribunals (see Roche, 2003: 6; McLaughlin et al, 2003).

Family group conferences are among the most emblematic forms of restorative justice. Despite differences in programs, family group conferences are most prominent in the youth justice field and usually entail structured meetings between victims, offenders and other community support people. In general, they follow the commission of offences where an offender (often a youth) is accused of, and admits to committing, a crime as defined in legal statute.² The offender agrees (after being referred usually by the police, judges, community agency workers, etc) to participate in a family group conference in place of dealing with the matter through criminal justice processes. Co-ordinators, who are often employed within community policing or justice departments, arrange the conferences by contacting victims and outlining some of the benefits of attending such meetings. They are encouraged to attend with family, friends and other community support people, and to consider how offenders might make things right for them. The conferences are often held at community venues and chaired by ‘referees' who introduce offenders, victims and their respective families/support people. Referees may be community volunteers, agency workers, community police officers, youth justice workers, and so on (Johnstone, 2003). They employ diverse mediation techniques to facilitate discussions that require offenders to confront the harm they have caused to victims and take responsibility for the offence. At the same time, victims and families are given an opportunity to make their views, needs and wants clear — all are involved in discussions of how offenders might make meaningful amends in context. The aim is to restore ‘right relations’ in the community by involving all participants, but ensuring that the victim's needs are at the forefront of conference discussions.

Kurki (2003), Clear and Karp (2002) and Morris (1995, 2000) describe various ‘community mediation’ processes where community volunteers are involved in assisting affected subjects to develop appropriate responses to conflict and crime. These broadly formulated community processes include: mediation sessions in which local mediators (volunteer or paid) assist participants to define key issues arising out of a given event and develop ways of redressing community relations disturbed by criminal events; community panels or boards consisting of volunteer community members that ‘hear’ disputes and help disputants to resolve conflict (Merry and Milner, 1993; Karp and Walther, 2001); and the use of respected community elders as conciliators at the behest of participants to a given conflict. In addition, Umbreit (2001) provides a detailed analysis of victim-offender mediation that applies mediation techniques designed specifically to heal relationships between victims, offenders and community stakeholders. In many cases, as the name implies, this mediation occurs once offenders are convicted by courts; it is not a diversionary process as such. There are also various restorative processes that claim the rubric of sentencing circles, specifically designed to involve affected community members to help arrive at contextually appropriate sentences for offenders (see Canada, 2003; Stuart, 2001).

Although diverse, these various images and techniques are considered more or less restorative depending on the extent to which they embrace a loosely defined set of restorative values and principles (Zehr, 2002: 55). Restorative justice's defining moral values are thus elemental to the programs deployed in its name, yet these values are able to achieve prominence in rather specific socio-political and cultural contexts, and betray a complex genealogical lineage. Although this is not the place to detail the complex rise of restorative justice, it is nevertheless instructive to sketch elements of its lineage. If nothing else, this should serve to point out broader lines of descent that have contributed to the emergence of values and practices associated with the identity of restorative justice.

An abbreviated genealogy of restorative justice

Amidst perceptions of growing poverty and dissent in the 1950s and 1960s, numerous international governmental initiatives focused attention on social defence, community development and various poverty reduction strategies.³ In addition, social defence strategies arose in the wake of the Second World War, effectively employing military reasoning to defend ‘society’ against anti-social threats, especially from a so-called ‘criminal element’. With the active encouragement of the United Nations, an emphasis on preventing crime helped to establish criminology departments in many academic institutions (Walters, 2003). The aim was to develop strategic knowledge designed to reduce crime, deviance and conflicts that threatened normal social relations.

In a related fashion, and in response to rioting in inner city ghettos, the United States government developed ‘upliftment’ strategies that established a Community Relations Service during the same period. Charged with the task of developing communities, this service provided important resources for the advance of neighbourhood justice (Hofrichter, 1987), ADR, community mediation (see Pavlich, 1996a), community panels (Merry and Milner, 1993) and community justice (Shonholtz, 1988/89). From the early 1980s, these developments fed into, and elaborated upon, a growing sense that local community strength is foundational to vibrant social democracies (Shonholtz, 1988/89). Later, advocates would develop this sense into a call for strong community-based civil societies as the basis for democracy (Strang and Braithwaite, 2001).

The rebirth of communitarian discourses provided another cultural resource for those championing community forms of justice (Clear and Karp, 2002; Etzioni, 1998). Coterminous with attempts to build security through communities, one finds in the 1970s and 1980s increasingly regular critiques, especially by state-sanctioned law reform bodies, of the adversarial legal system. The criminal justice system was seen to be failing, and to be doing so with spectacularly tragic consequences for the social fabric. The law was depicted as deploying anachronistic institutions ill-equipped to accommodate the changing volume, type and causes of dispute in the late 20th century.⁴ The system was labelled as costly, inefficient, alienating, arbitrary, inaccessible, and inappropriately focused on the interests of lawyers and judges. Punishment regimes were, at the same time, a realm of dystopian criminological thinking: this was the era of the so-called ‘nothing works’ thesis — neither punishing offenders nor attempting to rehabilitate them seemed to curtail recidivism. All of this helped the informalism cause and its promise to offer another way to deal with crime. Law reformers saw in informal justice a method to resolve disputes in more lasting ways.

Within this informal justice ethos, legal anthropology struck a reverberating chord with its descriptions of Barotse jurisprudence (Gluckman, 1965), justice amongst the Tiv (Bohannan, 1957), or the fascinating ways in which moots/tribunals sought justice in various African contexts (Fisher, 1975). A developing ‘access to justice’ movement appealed to these analyses in its attempts to make Western legality more accessible to people and communities (Auerbach, 1983)⁵. In addition, the rise of an alternative dispute resolution movement, the call for greater informality in ‘minor cases' (Frank, 1970) and the funding of experiments in neighbourhood justice in the United States (Ford Foundation, 1978) rendered the search for justice outside law practicable. Allied to such experiments, various churches (especially the Mennonite Central Committee) deployed community justice initiatives in the United States, Canada, Britain and New Zealand.⁶ To be sure, the now-pervasive values of restoration, healing, reintegration, forgiveness and compassion within restorative governmentalities often derive from theological roots. Church-based restorative justice initiatives seemed to align particularly well with community mediation/panels and victim-offender reconciliation programs (more recently renamed victim-offender mediation – see Umbreit, 2001).

In sum, restorative justice's lineage includes the single and combined effects of: poverty reduction, community development and social defence initiatives; a rising informal justice movement bolstered by findings from legal anthropology coupled with a resonant critique of Western legal forms; and high profile experiments with informal justice, including those relying on theological images and concepts. This lineage should be silhouetted against rising neo-liberal backgrounds with their various, but concentrated, attacks on social welfare state formations. They are also very much part of the social landscapes that have brought many Western contexts into what Garland identifies as vast cultures of crime control (see Garland, 2001). Calls for non-state justice thrived amidst a great chorus booming the necessity of private, free markets to regulate individual subjects outside state institutions or public bodies. Such corporatising attacks on the social welfare state were often successful in fragmenting general images of welfare society into private communities (the social appearing more as a ‘community of communities'— see Etzioni, 1998). They also supported the concept of diverting (especially young) offenders from state courts into communities for first (and other) offences, and enabled advocates of restorative justice to champion the cause of individual participation in communal approaches to criminal events.

Of course, this genealogical lineage is both sketchy and incomplete, but it does at least allude to patterns of descent that comprise the context within which restorative justice's shifting identity emerges. But how is one to decipher theoretically the emergence of restorative justice? Over the years, the rise of restorative justice has been debated through numerous theoretical analyses and assessments.⁷

The early contours of these debates centred on the question of whether informal justice (and ADR) did, as its proponents allege, actually wrest control over disputes away from the seemingly omniscient and alienating social welfare state (Pavlich, 1996b). Advocates argued that informal justice created everyday domains of freedom that empowered communities and individual disputants to resolve disputes without relying on state justice (hence ADR). Victim-offender mediation (reconciliation) programs extended the idea of mediation by seeking to reconcile parties involved in criminal events, opening the way to broader restorative attempts to deal with the harms of crime. Supporters saw informal measures as creating new pathways to justice that empowered individual victims, offenders, disputants and communities to wrest back control of conflict from state institutions (Christie, 1977). In this way, informal justice was seen to diminish state control and to broaden the scope for community participation (Shonholtz, 1988/89).

Neo-Marxist critics of such justice, by contrast, pointed to pernicious ways in which community mediation expanded state control by other means. Any retraction of state control was mererhetoric, since informal justice mechanisms were doing the state's job.⁸ The ideology of receding state control effectively masked the reality that informalism enabled the state to extend and intensify its control over individual lives. The welfar...

Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Dedication
• Acknowledgement
• Contents
• 1 Tracing Auspices of Restorative Justice
• 2 Healing Crime's Harm
• 3 Victims of Restorative Governmentalities
• 4 Responsible Offenders
• 5 The State of Restored Communities
• 6 Justice Anew?
• Bibliography
• Index